REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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WEST COAST BANCORP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Oregon 93-0810577
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
5335 Meadows Road, Suite 201
Lake Oswego, Oregon 97035
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
2000 RESTRICTED STOCK PLAN
(FULL TITLE OF THE PLAN)
Shauna L. Vernal
West Coast Bancorp
5335 Meadows Road, Suite 201
Lake Oswego, Oregon 97035
Telephone (503) 684-0884
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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Common Stock, no par value(1) 250,000 shares (2) $2,593,750(2) $684.75
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(1) Pursuant to Rule 416 under the Securities Act of 1933, this registration statement also covers
an indeterminate number of additional shares reserved for issuance under the 2000 Restricted
Stock Plan as a result of any future stock split, stock dividend, or similar adjustment of the
outstanding common stock.
(2) Pursuant to Rule 457(h), the proposed maximum aggregate offering price and the registration fee
have been computed based on the average of the high and low per share sales prices, $10.375,
reported for the common stock, no par value ("Common Stock"), on The Nasdaq Stock Market on
April 13, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(a) The registrant's Annual Report on Form 10-K for the year ended
December 31, 1999 (the "1999 Form 10-K").
(b) The registrant's Current Reports on Form 8-K filed January 7,
2000, and April 3, 2000.
(c) The description of the registrant's capital stock included as
Exhibit 99.1 to this registration statement.
All documents filed by the registrant subsequent to the date of filing
of this Registration Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Oregon Business Corporation Act (the "Oregon Act") requires the
indemnification of an individual made a party to a proceeding because the
individual is or was a director, officer, employee, or agent of a corporation
(unless limited by the corporation's articles of incorporation) if the
individual is wholly successful in the proceeding, on the merits or otherwise.
In addition, the Oregon Act allows a corporation to indemnify such an individual
if: (a) the conduct of the individual was in good faith; (b) the individual
reasonably believed that the individual's conduct was in the best interests of
the corporation, or at least not opposed to its best interests; and (c) in the
case of any criminal proceeding, the individual had no reasonable cause to
believe that the individual's conduct was unlawful.
A corporation may also provide indemnification if (x) in the case of
any proceeding by or in the right of the corporation, such individual was not
adjudged liable to the corporation or (y) in connection with any proceeding
(other than a proceeding by or in the right of the corporation) charging
improper personal benefit to the individual, such individual was not adjudged
liable on the basis that he or she improperly received a personal benefit.
The Oregon Act also authorizes a court to order indemnification,
whether or not the above standards of conduct have been met, if the court
determines that the officer or director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances.
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The indemnification described above is not exclusive of any other
rights to which officers or directors may be entitled under a corporation's
articles of incorporation or bylaws, or under any agreement, action of its board
of directors, vote of shareholders or otherwise.
Article V of the restated articles of incorporation of the Company
provides that the Company will indemnify each of its directors to the fullest
extent permissible under the Oregon Act and permits the Company to indemnify its
officers, employees, and agents. Section 5 of the bylaws of the Company requires
such indemnification for directors and officers, or any individual who, while a
director of the corporation, is or was serving at the Company's request as a
director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise, against liability and expenses, including attorney fees,
actually and necessarily incurred by such individual in connection with any
threatened, pending, or completed action, suit, or proceeding to which the
individual is a party. However, the Company will not provide indemnification
when (1) a director or officer commits intentional misconduct or knowingly
violates the law; (2) a director or officer is adjudged liable to the Company in
a proceeding by or in the right of the Company; or (3) a director or officer is
adjudged liable in any proceeding charging improper personal benefit on the
basis that the director or officer improperly received a personal benefit. The
Company may, but is not required to, offer the same rights of indemnification,
on a case-by-case basis, to employees and agents of the Company. Indemnification
rights and procedures, including entitlement to advances of expenses, are set
forth in more detail in the Company's bylaws.
The Company has also entered into indemnification agreements with its
directors and certain of its officers. These agreements provide that the Company
will indemnify its directors and officers who are parties thereto to the fullest
extent permitted under the Oregon Act and the Company's articles of
incorporation and bylaws against expenses and liabilities incurred in specified
actions, suits or proceedings unless covered by insurance or except in the
circumstances described above.
ORS 60.367 provides that any director held liable pursuant to that
section for the unlawful payment of a dividend or other distribution of assets
of a corporation shall be entitled to contribution from (a) each shareholder who
accepted the dividend or distribution knowing the same to have been made in
violation of the Oregon Act or the articles of incorporation and (b) each
director who voted for or assented to the dividend or distribution without
complying with the applicable standards of conduct described in ORS 60.357.
The Company carries insurance coverage for its officers and directors
against certain liabilities that they may incur in their respective capacities
with the Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The Index to Exhibits listing the exhibits required by Item 601 of
Regulation S-K is located at page II-6.
Item 9. UNDERTAKINGS.
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 ("Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue. The
undertaking of the registrant in the preceding sentence does not apply to
insurance against liability arising under the Securities Act.
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SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Lake Oswego, state of Oregon, on the 20th day of
April, 2000.
WEST COAST BANCORP
By /s/ Robert D. Sznewajs
Robert D. Sznewajs
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Robert D. Sznewajs and Shauna L. Vernal, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution, in any and
all capacities, to sign this registration statement to be filed by West Coast
Bancorp, relating to 250,000 shares of its common stock, no par value, issuable
pursuant to its 2000 Restricted Stock Plan, and any and all amendments
(including post-effective amendments) to such registration statement and to file
the same, with exhibits, with the Securities and Exchange Commission. In
addition, each of the undersigned grants unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act
requisite and necessary to be done, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of the 20th day of April, 2000.
Signature Title
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Principal Executive Officer and Director:
/s/ Robert D. Sznewajs President and Chief Executive Officer
Robert D. Sznewajs and Director
Principal Financial Officer:
/s/ Anders Giltvedt Chief Financial Officer
Anders Giltvedt
Principal Accounting Officer:
/s/ Kevin M. McClung Vice President and Controller
Kevin M. McClung
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A majority of the Board of Directors:
/s/ Lloyd D. Ankeny Director
Lloyd D. Ankeny
/s/ Michael J. Bragg Director
Michael J. Bragg
/s/ William B. Loch Director
William B. Loch
/s/ Jack E. Long Director
Jack E. Long
/s/ C. Douglas McGregor Director
C. Douglas McGregor
/s/ J. F. Ouderkirk Director
J. F. Ouderkirk
/s/ Mary B. Pearmine Director
Mary B. Pearmine
/s/ Gary D. Putnam Director
Gary D. Putnam
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INDEX TO EXHIBITS
4.1 Restated Articles of Incorporation, as amended, of the registrant.
Incorporated by reference to Exhibit 3.1 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1998.
4.2 Restated Bylaws of the registrant. Incorporated by reference to Exhibit
3.2 to the registrant's Annual Report on Form 10-K for the year ended
December 31, 1998.
5 Opinion of Miller Nash LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Dwyer Pemberton and Coulson, P.C.
23.3 Consent of Miller Nash LLP. Included in Exhibit 5.
24 Power of attorney of certain officers and directors. See page II-4.
99.1 Description of the capital stock of West Coast Bancorp.
99.2 West Coast Bancorp 2000 Restricted Stock Plan.
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Other exhibits listed in Item 601 to Regulation S-K are not applicable.
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MILLER NASH LLP
Attorneys at Law
3500 U.S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, Oregon 97204-3699
(503) 224-5858
(503) 224-0155 Fax
April 19, 2000
West Coast Bancorp
5335 S.W. Meadows Road, Suite 201
Lake Oswego, Oregon 97035
Subject: West Coast Bancorp Registration Statement on Form S-8
Ladies and Gentlemen:
Reference is made to the registration statement on Form S-8
("Registration Statement") to be filed by West Coast Bancorp, an Oregon
corporation ("Company"), with the Securities and Exchange Commission for the
purpose of registering under the Securities Act of 1933, as amended (the
"Securities Act"), an additional 250,000 shares (the "Registered Shares") of the
Company's common stock, no par value ("Common Stock"), to be issued in
connection with the Company's 2000 Restricted Stock Plan (the "Plan").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, certificates of public
officials, and other documents as we have deemed necessary or relevant as a
basis for the opinion set forth herein.
Based on the foregoing, it is our opinion that, upon approval of the
Plan by the Company's shareholders at its 2000 annual meeting on April 27, 2000,
the Plan will have been duly adopted and approved by all necessary corporate
action and, when the Registered Shares shall have been issued in accordance with
the Plan following receipt of such shareholder approval, the Registered Shares
will be validly issued, fully paid and non-assessable.
We consent to the use of this opinion in the Registration Statement and
in any amendments thereof. In giving this consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
MILLER NASH LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
January 21, 2000 (except with respect to the matter discussed in Note 23, as to
which the date is March 22, 2000), included (or incorporated by reference) in
West Coast Bancorp's Form 10-K for the year ended December 31, 1999 and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
San Francisco, California
April 17, 2000
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report included
(or incorporated by reference) in West Coast Bancorp's Form 10-K for the year
ended December 31, 1999, and to all references to our Firm included in this
registration statement.
DWYER PEMBERTON & COULSON, P.C.
Tacoma, Washington
April 17, 2000
Exhibit 99.1
DESCRIPTION OF CAPITAL STOCK OF WEST COAST BANCORP
The articles of incorporation (the "Articles") of West Coast Bancorp
("Bancorp") authorize the issuance of up to 50 million shares of common stock,
no par value, and 10 million shares of preferred stock, no par value, issuable
in series. The following description of Bancorp's capital stock is qualified in
all respects by reference to the Articles.
COMMON STOCK
The holders of Bancorp's common stock are entitled to one vote per
share on all matters on which shareholders are entitled to vote. Holders of
common stock are entitled to receive dividends when and as declared by the Board
of Directors out of any funds lawfully available therefor and, in the event of
liquidation or a distribution of assets, are entitled to participate ratably in
the distribution of such assets remaining after payment of liabilities, in each
case subject to any preferential rights granted to any series of preferred stock
that may then be outstanding. Holders of common stock do not have preemptive
rights to purchase additional shares or cumulative voting rights with respect to
the election of directors.
PREFERRED STOCK
The Articles authorize the Board of Directors, without further
shareholder authorization, to issue preferred stock in one or more series and to
fix the preferences, limitations, voting rights, and relative rights of the
preferred stock or of any series thereof, including dividend rights and rights
on liquidation, including preferences over the common stock, all of which could
adversely affect the rights of holders of Bancorp's common stock. No shares of
preferred stock were outstanding on April 17, 2000. The issuance of a series of
preferred stock under certain circumstances could have the effect of delaying or
preventing a change of control of Bancorp, could adversely affect the rights of
the holders of common stock, may discourage offers for common stock at a premium
over market price and may adversely affect the market price of, and the voting
and other rights of the holders of, common stock.
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ELECTION OF DIRECTORS
The Board of Directors must consist of at least 8 but not more than 20
directors and is divided into three classes as nearly equal in number as
possible. The classes are staggered so that one class is elected each year to
serve a three-year term by shareholders entitled to vote at the annual meeting
of shareholders. A director may not be removed from office without cause except
by a vote of 66-2/3 percent of the shares entitled to vote in an election of
directors.
CONSIDERATION OF NON-MONETARY FACTORS
The Board of Directors, when evaluating any offer of another party to
(a) make a tender or exchange offer for any Bancorp equity security, (b) merge
or consolidate Bancorp with another corporation, or (c) purchase or acquire all
or substantially all of the properties and assets of Bancorp, may, in connection
with the exercise of its judgment in determining what is in the best interest of
Bancorp and its shareholders, give due consideration to all relevant factors,
including, without limitation, the social and economic effects on the employees,
customers, suppliers and other constituents of Bancorp and its subsidiaries and
on the communities in which Bancorp and its subsidiaries operate or are located.
ACTIONS THAT MAY REQUIRE SUPER-MAJORITY APPROVAL
Unless the Board of Directors approves the following categories of
transactions by an affirmative vote of more than 75 percent of the directors,
shareholders representing 66-1/3 percent of all classes of capital stock must
approve a transaction that involves (a) a change in control of Bancorp or (b)
any sale, lease, exchange, or other disposition of all or substantially all of
Bancorp's property. A change in control would occur if:
- Any person or entity becomes the beneficial owner of 30 percent or
more of the combined voting power of the then outstanding shares of Bancorp;
- Bancorp is merged or consolidated with another corporation and, as
a result of the merger or consolidation, less than 50 percent of the outstanding
voting securities of the surviving corporation would be owned in the aggregate
by persons or entities who were shareholders of Bancorp prior to such merger or
consolidation; or
- The transaction is of a type that would be required to be reported
under the SEC's proxy disclosure rules.
The provisions discussed in this paragraph may not be amended, altered, changed,
or repealed unless approved by more than 75 percent of the directors or by the
affirmative vote of 66-2/3 percent of all classes of voting stock of Bancorp,
voting as a single voting group.
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WEST COAST BANCORP
2000 RESTRICTED STOCK PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. West Coast Bancorp ("Bancorp"), an Oregon corporation,
has established the West Coast Bancorp 2000 Restricted Stock Plan (the "Plan"),
effective as of February 23, 2000, subject to shareholder approval as provided
in Article 12 of the Plan.
1.2 PURPOSE. The purpose of the Plan is to promote and advance the
interests of Bancorp and its shareholders by enabling Bancorp to attract,
retain, and reward its Employees and Service Providers. It is also intended to
strengthen the mutuality of interests between Bancorp's shareholders and its
Employees and Service Providers. The Plan is designed to meet this intent by
offering grants of Restricted Stock, thereby providing a proprietary interest in
pursuing the long-term growth, profitability, and financial success of Bancorp.
ARTICLE 2
DEFINITIONS
2.1 DEFINED TERMS. For purposes of the Plan, the following terms have the
meanings set forth below:
"AFFILIATE" means a corporation or other entity controlled by,
controlling, or under common control with Bancorp.
"AWARD" means a Restricted Share granted to a Participant pursuant to
the Plan.
"AWARD AGREEMENT" means an agreement as described in Section 6.4.
"BANCORP" means West Coast Bancorp, an Oregon corporation, or any
successor corporation.
"BOARD" means the Board of Directors of Bancorp.
"CAUSE" means:
(a) For an Employee who has an employment agreement with an Employer,
Cause has the meaning set forth in such agreement;
(b) For all other Participants, Cause means material or flagrant
violation of the policies and procedures of Bancorp or other job performance
or conduct that is materially detrimental to the best interests of Bancorp,
and, in the case of a Service Provider, also includes any material breach of
any applicable agreement with Bancorp or a Subsidiary or Affiliate.
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"CHANGE IN CONTROL" means:
(i) The acquisition by any Person (or by any group of Persons that
would constitute a "group" for purposes of Section 13(d) and Rule 13d-5, as
in effect on the Grant Date, under the Exchange Act) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act), other
than a Person or group that acquires such beneficial ownership solely
because such Person or group has voting power with respect to Voting
Securities arising from a revocable proxy or consent given in response to a
public proxy or consent solicitation made pursuant to the Exchange Act (as
in effect from time to time), of 20 percent or more of the combined voting
power of the then outstanding Voting Securities; provided, however, that for
purposes of this paragraph (i), the following acquisitions will not
constitute a Change in Control: (A) any acquisition directly from Bancorp;
(B) any acquisition by Bancorp or a Subsidiary, (C) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by Bancorp
or any corporation controlled by Bancorp, or (D) any acquisition by any
corporation pursuant to a transaction which complies with clauses (A), (B),
and (C) of paragraph (iii) below; or
(ii) Individuals who, as of the Grant Date, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to the Grant Date whose election, or nomination for election by
Bancorp's shareholders, was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board will be considered as though
such individual were a member of the Incumbent Board, but excluding for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger, or consolidation or
sale or other disposition of all or substantially all of the assets of
Bancorp (a "Business Combination") in each case, unless, following such
Business Combination, (A) all or substantially all of the individuals and
entities who were the beneficial owners of the Voting Securities outstanding
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50 percent of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a result
of such transaction owns Bancorp or all or substantially all of Bancorp's
assets either directly or through one or more subsidiaries) in substantially
the same proportions as their ownership, immediately prior to such Business
Combination, of the Voting Securities, (B) no Person (excluding any employee
benefit plan (or related trust) of Bancorp or such corporation resulting
from such Business Combination) beneficially owns, directly or indirectly,
20 percent or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed
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prior to the Business Combination and (C) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the earlier of the time
of the execution of the initial agreement with respect to such Business
Combination, or of the action of the Board providing for such Business
Combination; or
(iv) Approval by the shareholders of Bancorp of any plan or proposal
for the liquidation or dissolution of Bancorp.
For purposes of this definition, a Change in Control "occurs" on the
date the Change in Control first occurs; provided, however, that if:
(A) (1) An Employee's employment is terminated without Cause by
an Employer (and Employee is not employed by another Employer within 14
days thereafter) after a tender offer or exchange offer by a Person for
more than 20 percent of Bancorp's Voting Securities is made, (2) it is
reasonably demonstrated that the Employee's termination was at the
request of a third party who is seeking to effect a Change in Control
or otherwise occurred as a result of an anticipated Change in Control,
and (3) a Change in Control in fact occurs within nine months after the
Employee's termination; or
(B) An Employee's employment is terminated without Cause by an
Employer (and Employee is not employed by another Employer within 14
days thereafter) following the execution by Bancorp of a definitive
agreement for a transaction that will constitute a Change in Control
and such Change in Control transaction is in fact closed within six
months after the Employee's termination;
then for purposes of determining the Employee's Vesting under any Award granted
under this Plan, such Change in Control will be deemed to have occurred
immediately before the Termination Date. If this paragraph may potentially
apply, the portion of any Award that appears unvested at the time of the
Employee's termination will not expire or be forfeited until the earliest to
occur of the following: (1) the six or nine month period identified above, as
applicable, has elapsed without a Change in Control occurring, (2) the
applicable Change in Control has terminated, or (3) it is otherwise reasonably
determined to the satisfaction of the Committee that Vesting of the Award will
not accelerate under the terms of this Plan in the particular case. The Employee
will not be entitled to receive any part of the portion of the Award appearing
unvested at the Employee's termination until it is finally determined that
Vesting did in fact accelerate under the terms of this Plan.
"CODE" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, or any successor thereto, together with rules,
regulations, and interpretations promulgated thereunder. Where the context so
requires, any reference to a particular Code section will be construed to refer
to the successor provision to such Code section.
"COMMITTEE" means the committee appointed by the Board to administer
the Plan as provided in Article 3 of the Plan.
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"COMMON STOCK" means the Common Stock, no par value, of Bancorp or any
security of Bancorp issued in substitution, in exchange, or in lieu of such
stock.
"CONTINUING RESTRICTION" means a Restriction contained in Sections 7.4
and 11.4 of the Plan and any other Restrictions expressly designated by the
Committee in an Award Agreement as a Continuing Restriction.
"DISABILITY" means inability to perform a Participant's duties (or
equivalent duties) for an Employer on a full-time basis by reason of a medically
determinable (to the reasonable satisfaction of the Committee) physical or
mental condition that results in absence from such duties for a period of 90
consecutive days or a total of 120 days during any calendar year.
"EMPLOYEE" means any person employed by Bancorp or a Subsidiary or
Affiliate.
"EMPLOYER" means Bancorp or a Subsidiary or Affiliate of Bancorp.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
and in effect from time to time, or any successor statute. Where the context so
requires, any reference to a particular section of the Exchange Act, or to any
rule promulgated under the Exchange Act, will be construed to refer to successor
provisions to such section or rule.
"FAIR MARKET VALUE" means with respect to Common Stock, on a particular
day, without regard to any restrictions (other than a restriction which, by its
terms, will never lapse), the closing price of Shares of the Common Stock on
that day or, if that day is not a trading day, the last prior trading day, on
the securities exchange or automated securities interdealer quotation system on
which such Shares have been traded.
"GRANT DATE" means the date an Award is granted.
"PARTICIPANT" means an Employee or Service Provider who is granted an
Award under the Plan.
"PERSON" means and includes any individual, corporation, limited
liability company, partnership, trust, group, association, or other "person," as
such term is used in Section 13(d)(3) or 14(d) of the Exchange Act.
"PLAN" means this West Coast Bancorp 2000 Restricted Stock Plan, as it
may be amended from time to time.
"REPORTING PERSON" means a Participant who is subject to the reporting
requirements of Section 16(a) of the Exchange Act.
"RESTRICTED SHARE" means an Award described in Section 7.1 of the Plan.
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"RESTRICTION" means a provision in the Plan or in an Award Agreement
which governs the forfeiture of an Award or the Shares, cash, or other property
payable pursuant to an Award.
"SERVICE PROVIDER" means any person who provides services to Bancorp or
a Subsidiary or Affiliate under contract or other agreement with Bancorp or the
Subsidiary or Affiliate.
"SHARE" means a share of Common Stock.
"SUBSIDIARY" means any subsidiary corporation of Bancorp in which
Bancorp directly or indirectly controls 50 percent or more of the total combined
voting power of all classes of stock having voting power, whether such
corporation now exists or is hereafter organized or acquired by Bancorp or
another Subsidiary.
"TERMINATION DATE" means the date a Participant ceases to be an
Employee or Service Provider.
"VEST" or "VESTED" with respect to an Award means to be or to become
nonforfeitable, freely transferable, and free of all Restrictions (other than
Continuing Restrictions).
"VOTING SECURITIES" means all issued and outstanding securities
ordinarily having the right to vote at elections of Bancorp's directors,
including without limitation the Shares.
2.2 GENDER AND NUMBER. Except where otherwise indicated by the context, any
masculine or feminine terminology used in the Plan also includes the opposite
gender; and the definition of any term in Section 2.1 in the singular also
includes the plural, and vice versa.
ARTICLE 3
ADMINISTRATION
3.1 GENERAL. The Plan will be administered by a Committee composed as
described in Section 3.2.
3.2 COMPOSITION OF THE COMMITTEE. The Committee will be appointed by the
Board from among its members in a number and with such qualifications as will
meet the requirements for approval by a committee pursuant to Rule 16b-3 under
the Exchange Act. Initially, the Committee will consist of all the members of
the Board. The Board may from time to time remove members from, or add members
to, the Committee. Vacancies on the Committee, however caused, will be filled by
the Board.
3.3 AUTHORITY OF THE COMMITTEE. The Committee will have full power and
authority (subject to such orders or resolutions as may be issued or adopted
from time to time by the Board) to administer the Plan in its sole discretion,
including the authority to:
(a) Construe and interpret the Plan and any Award Agreement;
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(b) Promulgate, amend, and rescind rules and procedures relating to the
implementation of the Plan;
(c) Select the Employees and Service Providers who will be granted
Awards;
(d) Determine the number of Awards to be granted to each such
Participant;
(e) Determine the number of Shares to be subject to each Award;
(f) Determine to what extent and under what circumstances Shares and
other amounts payable with respect to an Award may be deferred;
(g) Determine if and under what circumstances an Award may be settled
in cash or Shares under Section 7.5; and
(h) Determine all the terms and conditions of all Award Agreements,
consistent with the requirements of the Plan.
Decisions of the Committee, or any delegate as permitted by the Plan, will be
final, conclusive, and binding on all Participants.
3.4 ACTION BY THE COMMITTEE. A majority of the members of the Committee
will constitute a quorum for the transaction of business. Action approved by a
majority of the members present at any meeting at which a quorum is present, or
action in writing by all the members of the Committee, will be the valid act of
the Committee.
3.5 DELEGATION. Notwithstanding the foregoing, the Committee may delegate
to one or more officers of Bancorp the authority to determine the recipients,
amounts, and terms of Awards granted to Participants who are not Reporting
Persons; provided, however, that Awards to any individual Participant made
pursuant to such delegation may not exceed 1,000 Shares in any calendar year
unless the Committee expressly provides otherwise in its delegation resolution.
3.6 LIABILITY OF COMMITTEE MEMBERS. No member of the Committee (or officer
acting as a delegate of the Committee) will be liable for any action or
determination made in good faith with respect to the Plan, any Award, or any
Participant.
3.7 COSTS OF PLAN. The costs and expenses of administering the Plan will be
borne by Bancorp.
ARTICLE 4
DURATION OF THE PLAN AND SHARES SUBJECT TO THE PLAN
4.1 DURATION OF THE PLAN. The Plan is effective February 23, 2000, subject
to approval by Bancorp's shareholders as provided in Article 12. The Plan will
remain in effect until Awards have been granted covering all the available
Shares or the Plan is otherwise terminated by the Board. Termination of the Plan
will not affect outstanding Awards.
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4.2 SHARES SUBJECT TO THE PLAN.
4.2.1 GENERAL. The shares which may be made subject to Awards under the
Plan are Shares of Common Stock, which may be either authorized and unissued
Shares or reacquired Shares. No fractional Shares may be issued under the Plan.
4.2.2 NUMBER OF SHARES. The maximum number of Shares for which Awards
may be granted under the Plan is 250,000 Shares, subject to adjustment pursuant
to Article 9 of the Plan.
4.2.3 AVAILABILITY OF SHARES FOR FUTURE AWARDS. If an Award under the
Plan is canceled or expires for any reason prior to having been fully Vested or
is settled in cash in lieu of Shares or is exchanged for other Awards, all
Shares covered by such Award will be made available for future Awards under the
Plan.
ARTICLE 5
ELIGIBILITY
5.1 EMPLOYEES AND SERVICE PROVIDERS. Officers and other key employees of
Bancorp and any Subsidiaries and Affiliates (who may also be directors of
Bancorp or a Subsidiary or Affiliate) and Service Providers who, in the
Committee's judgment, are or will be contributors to the long-term success of
Bancorp will be eligible to receive Awards under the Plan.
ARTICLE 6
AWARDS
6.1 TYPES OF AWARDS. The types of Awards that may be granted under the Plan
are Restricted Awards governed by Article 7 of the Plan. In the discretion of
the Committee, any Award may be granted alone, in addition to, or in tandem with
other Awards under the Plan.
6.2 GENERAL. Subject to the limitations of the Plan, the Committee may
cause Bancorp to grant Awards to such Participants, at such times, in such
amounts, for such periods, and subject to such terms, conditions, limitations,
and restrictions as the Committee, in its discretion, deems appropriate. Awards
may be granted as additional compensation to a Participant or in lieu of other
compensation to such Participant. A Participant may receive more than one Award
under the Plan.
6.3 NONUNIFORM DETERMINATIONS. The Committee's determinations under the
Plan or under one or more Award Agreements, including without limitation (a) the
selection of Participants to receive Awards, (b) the form, amount, and timing of
Awards, (c) the terms of specific Award Agreements, and (d) elections and
determinations made by the Committee with respect to payments of Awards, need
not be uniform and may be made by the Committee selectively among Participants
and Awards, whether or not Participants are similarly situated.
6.4 AWARD AGREEMENTS. Each Award will be evidenced by a written Award
Agreement between Bancorp and the Participant. Award Agreements may, subject to
the provisions of the Plan, contain any provision approved by the Committee.
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6.5 PROVISIONS GOVERNING ALL AWARDS. All Awards will be subject to the
following provisions:
(a) EMPLOYMENT RIGHTS. Neither the adoption of the Plan nor the
granting of any Award will confer on any person the right to continued
employment with Bancorp or any Subsidiary or Affiliate or the right to
remain as a Service Provider nor will it interfere in any way with the right
of Bancorp or a Subsidiary or Affiliate to terminate such person's
employment or to remove such person as a Service Provider at any time for
any reason or for no reason, with or without cause.
(b) TERMINATION OF EMPLOYMENT OR SERVICE. No Award will continue to
Vest after termination of a Participant's employment or service as a Service
Provider. The effect of such termination on Award Shares that are not Vested
as of the Termination Date will be determined by the other provisions of
this Plan. Generally, unless otherwise specified in the Award Agreement,
unvested shares will be forfeited to Bancorp, unless Vesting is accelerated
as provided below. Temporary absences from employment because of illness,
vacation, or leave of absence and transfers among Bancorp and its
Subsidiaries and Affiliates will not be considered terminations of
employment or Service Provider status.
(c) ACCELERATED VESTING. Notwithstanding the Vesting schedule set
forth in any Award Agreement all Award Shares granted to a Participant (to
the extent such Award Shares have not previously either become Vested or
been forfeited) will become fully Vested, and the Restrictions imposed by
the Award Agreement(s) governing such Shares will terminate, upon:
(i) A Change in Control of Bancorp;
(ii) Termination of a Participant's employment with an
Employer or status as a Service Provider by reason of such
Participant's death; or
(iii) Termination of employment of a Participant who is an
Employee by reason of Disability.
6.6 SHARE CERTIFICATES. Certificates for Award Shares will be either:
(a) Issued in Participant's name and held by Bancorp, together
with a stock power for such Shares executed in blank by the Participant,
until all restrictions lapse or the Award Shares are forfeited as provided
in the Award Agreement for such Shares; or
(b) Held in a bookkeeping account in Participant's name subject to
the transfer restrictions of the applicable Award Agreement.
Whenever certificates are issued in a Participant's name, such certificates for
Award Shares that have not yet become Vested will bear a legend in substantially
the following form:
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THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED AS RESTRICTED
SHARES UNDER THE WEST COAST BANCORP 2000 RESTRICTED STOCK PLAN (THE
"PLAN") AND ARE SUBJECT TO RESTRICTIONS ON THEIR TRANSFER, DISPOSITION,
OR ENCUMBRANCE SET FORTH IN A RESTRICTED SHARES AWARD AGREEMENT UNDER
THE PLAN. A COPY OF THE RESTRICTED SHARES AWARD AGREEMENT MAY BE
OBTAINED FROM WEST COAST BANCORP.
Certificates for the Award Shares may also bear any other restrictive legends
required by law or any other agreement.
6.7 TAX WITHHOLDING.
(a) GENERAL. Bancorp will have the right to deduct from any
settlement, including the delivery or Vesting of Shares or Awards, made
under the Plan any federal, state, or local taxes of any kind required by
law to be withheld with respect to such payments or Vesting or to take such
other action as may be necessary in the opinion of Bancorp to satisfy all
obligations for the payment of such taxes. The recipient of any payment or
distribution under the Plan will be required to make arrangements
satisfactory to Bancorp for the satisfaction of any such withholding tax
obligations. Bancorp will not be required to make any such payment or
distribution under the Plan until such obligations are satisfied.
(b) STOCK WITHHOLDING. Unless a Participant makes payment to
Bancorp (or otherwise makes arrangements acceptable to Bancorp for the
payment) of all withholding and payroll taxes with respect to the Vesting or
delivery of Shares or Awards prior to the date of such Vesting or delivery,
Bancorp will have the right to automatically withhold a portion of the
Shares that would otherwise be issuable to the Participant having a Fair
Market Value equal to the total amount of such taxes due. Such Shares will
be valued based on their Fair Market Value on the date the tax withholding
is required to be made. In no event may the number of Shares withheld
pursuant to this Section 6.7 exceed the number required to meet Bancorp's
tax withholding obligations based on the minimum statutory withholding rates
for federal, state and local tax purposes, including payroll taxes,
applicable to the supplemental taxable income attributable to the vesting or
delivery of the Shares.
6.8 ANNULMENT OF AWARDS. Any Award Agreement may provide that the
grant of an Award payable in cash is provisional until cash is paid in
settlement of the Award or that the grant of an Award payable in Shares is
provisional until the Participant becomes entitled to the certificate in
settlement of such Award. In the event the employment (or service as a Service
Provider) of a Participant is terminated for Cause, any Award that is
provisional will be annulled as of the date of such termination for Cause.
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ARTICLE 7
RESTRICTED AWARDS
7.1 RESTRICTED AWARDS. Restricted Awards granted under the Plan will
be in the form of Restricted Shares. A Restricted Share is an Award of Shares
transferred to a Participant subject to such terms and conditions as the
Committee deems appropriate, including, without limitation, restrictions on the
sale, assignment, transfer, or other disposition of such Restricted Shares and
may include a requirement that the Participant forfeit such Restricted Shares
back to Bancorp upon termination of Participant's employment (or service as a
Service Provider) for specified reasons within a specified period of time or
upon other conditions, as set forth in the Award Agreement for such Restricted
Shares. Each Participant receiving a Restricted Share will be required to
execute a stock power in blank with respect to the Shares. The stock power and
any certificate or bookkeeping account evidencing such Restricted Shares will be
held in custody by Bancorp or its transfer agent until the Restrictions thereon
will have lapsed.
7.2 GENERAL. Restricted Awards will be subject to the terms and
conditions of Article 6 and this Article 7 and may contain such additional terms
and conditions, not inconsistent with the express provisions of the Plan, as the
Committee deems desirable.
7.3 RESTRICTION PERIOD. Restricted Awards will provide that such
Awards, and the Shares subject to such Awards, may not be transferred, and may
provide that, in order for a Participant to Vest in such Awards, the Participant
must remain in the employment (or remain as a Service Provider) of Bancorp or
its Subsidiaries or Affiliates, subject to relief for reasons specified in the
Award Agreement, for a period commencing on the date of the Award and ending on
such later date or dates as the Committee designates at the time of the Award
(the "Restriction Period"). During the Restriction Period, a Participant may not
sell, assign, transfer, pledge, encumber, or otherwise dispose of Shares
received under or governed by a Restricted Award grant. The Committee, in its
sole discretion, may provide for the lapse of restrictions in installments
during the Restriction Period. Upon expiration of the applicable Restriction
Period (or lapse of Restrictions during the Restriction Period where the
Restrictions lapse in installments) the Participant will be entitled to
settlement of the Restricted Award or portion thereof, as the case may be.
7.4 FORFEITURE. If a Participant ceases to be an Employee or Service
Provider during the Restriction Period for any reason, other than reasons which
may be specified in an Award Agreement or this Plan (such as death, Disability,
or Change in Control), all non-Vested Restricted Awards previously granted to
the Participant will be forfeited and returned to Bancorp.
7.5 SETTLEMENT OF RESTRICTED AWARDS. Upon Vesting of a Restricted
Share Award, the legend on such Shares will be removed and the Participant's
stock power will be returned and the Shares will no longer be Restricted Shares.
The Committee may also, in its discretion, permit a Participant to receive, in
lieu of unrestricted Shares at the conclusion of the Restriction Period, payment
in cash, installments, or in any other manner or combination of such methods as
the Committee, in its sole discretion, determines. Settlement or payment in cash
or other compensation in lieu of Shares will be permitted only upon Committee
approval, either as part of
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an Award Agreement or at the time of settlement, and will not otherwise be
available to a Participant.
7.6 RIGHTS AS A SHAREHOLDER. A Participant will have, with respect to
unforfeited Shares received under a grant of Restricted Shares, all the rights
of a shareholder of Bancorp, including the right to vote the Shares, and the
right to receive any cash dividends. Stock dividends issued with respect to
Restricted Shares will be treated as additional Shares covered by the grant of
Restricted Shares and will be subject to the same Restrictions. Cash dividends
will be automatically reinvested as additional Shares covered by the grant of
Restricted Shares and will be subject to the same Restrictions, unless the
Committee, in its discretion, approves an exception to allow the receipt of cash
dividends in cash.
ARTICLE 8
DEFERRAL ELECTIONS
Any Participant who is also a participant in the Bancorp Executives'
Deferred Compensation Plan (the "Deferral Plan") may, pursuant to deferral
elections otherwise meeting the requirements of the Deferral Plan, elect to
defer receipt of the payment of cash or the delivery of Shares that would
otherwise be due to such Participant by virtue of the Vesting of an Award made
under the Plan.
ARTICLE 9
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC.
9.1 PLAN DOES NOT RESTRICT BANCORP. The existence of the Plan and the
Awards granted under the Plan do not affect or restrict in any way the right or
power of the Board or the shareholders of Bancorp to make or authorize any
adjustment, recapitalization, reorganization, or other change in Bancorp's
capital structure or its business, any merger or consolidation of Bancorp, any
issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting Bancorp's capital stock or the rights of such stock, the dissolution
or liquidation of Bancorp or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding.
9.2 ADJUSTMENTS BY THE COMMITTEE. In the event of any change in
capitalization affecting the Common Stock of Bancorp, such as a stock dividend,
stock split, recapitalization, merger, consolidation, split-up, combination or
exchange of shares or other form of reorganization, or any other change
affecting the Common Stock, proportionate adjustments will be made with respect
to the aggregate number of Shares for which Awards may be granted under the Plan
and the number of Shares covered by each outstanding Award. The Committee may
also make similar adjustments in the number of Shares covered by outstanding
Awards in the event of a spin-off or other distribution (other than normal cash
dividends), of Bancorp assets to shareholders.
ARTICLE 10
AMENDMENT AND TERMINATION
The Board may amend, suspend, or terminate the Plan or any portion of
the Plan at any time, provided no amendment may be made without shareholder
approval if such approval
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is required by applicable law or the applicable requirements of a stock exchange
or over-the-counter stock trading system.
ARTICLE 11
MISCELLANEOUS
11.1 UNFUNDED PLAN. The Plan will be unfunded and Bancorp will not be
required to segregate any assets that may at any time be represented by Awards
under the Plan. Any liability of Bancorp to any person with respect to any Award
under the Plan will be based solely upon any contractual obligations that may be
effected pursuant to the Plan. No such obligation of Bancorp will be deemed to
be secured by any pledge of, or other encumbrance on, any property of Bancorp.
11.2 PAYMENTS TO TRUST. The Committee is authorized (but has no
obligation) to cause to be established a trust agreement or several trust
agreements under which the Committee may make payments of amounts due or to
become due to Participants in the Plan.
11.3 OTHER BANCORP BENEFIT AND COMPENSATION PROGRAMS. Payments and
other benefits received by a Participant under an Award made pursuant to the
Plan will not be deemed a part of a Participant's regular, recurring
compensation for purposes of the termination indemnity or severance pay law of
any state or country and will not be included in, or have any effect on, the
determination of benefits under any other employee benefit plan or similar
arrangement provided by Bancorp or a Subsidiary or Affiliate unless expressly so
provided by such other plan or arrangements, or except where the Committee
expressly determines that an Award or portion of an Award should be included to
accurately reflect competitive compensation practices or to recognize that an
Award has been made in lieu of a portion of cash compensation. Awards under the
Plan may be made in combination with or in tandem with, or as alternatives to,
grants, awards, or payments under any other Bancorp, Subsidiary or Affiliate
plans, arrangements, or programs. The Plan notwithstanding, Bancorp or any
Subsidiary or Affiliate may adopt such other compensation programs and
additional compensation arrangements as it deems necessary to attract, retain,
and reward Employees and Service Providers for their service with Bancorp and
its Subsidiaries and Affiliates.
11.4 SECURITIES LAW RESTRICTIONS. No Shares may be issued under the
Plan unless counsel for Bancorp is satisfied that such issuance will be in
compliance with applicable federal and state securities laws. Certificates for
Shares delivered under the Plan may be subject to such stop-transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange Commission,
any stock exchange upon which the Common Stock is then listed, and any
applicable federal or state securities law. The Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions (in addition to the legend described in Section 7.1).
11.5 GOVERNING LAW. Except with respect to references to the Code or
federal securities laws, the Plan and all actions taken thereunder will be
governed by and construed in accordance with the laws of the state of Oregon.
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ARTICLE 12
SHAREHOLDER APPROVAL
The Plan is expressly subject to the approval of the Plan by the
shareholders of Bancorp at its 2000 annual meeting.
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